The Price of Love – Partner & Spouse Visas

In July 2012 the Home Office introduced changes to the immigration rules regarding the requirements to enter the UK as the partner of a person present and settled in this country as part of attempts to control immigration from outside Europe, arguing that the rules would ensure no incoming families would burden the UK taxpayer.

Under the family migration policy, only British citizens, foreign nationals who are deemed to be “present and settled” in the UK, or those with refugee status can apply to sponsor their non-European partners’ visa applications.

The rules apply to everybody. Prince Harry has announced his marriage to US citizen Meghan Markle. The royal bride-to-be must apply for a visa to enter the UK and marry Prince Harry in compliance with the rules. There are two options for those who like Ms Markle wish to marry their British partner and remain with them in the UK. They can enter as a fiancée. This application is made prior to entry to the UK and if successful a visa should be issued valid for six months to enable the marriage during this time. Once married a further in-country application as a spouse must be made.

Alternatively, the couple may marry abroad and make an application for the non British spouse to enter the UK following the marriage.

Either way the couple will have to show compliance with the minimum income requirement.

Presently the immigration rules require a UK Sponsor to be earning a minimum amount before they can bring a non-EU spouse to the UK to establish that they have sufficient funding to support themselves in the UK. In most cases, this is proof of an annual salary of £18,600, earned for at least six months prior to the application. This level rises to £22,400 for a non-European partner and child, with an additional levy of £2,400 for each additional child. At the moment this rule does not apply to EU citizens.

Those who are granted the “family of a settled person” visa cannot usually claim benefits or other public funds.

There are thousands of couples who have been separated due to being unable to meet the minimum income requirement. For these couples the price to be paid for their love is far too high.

The minimum income requirement policy was challenged in the High Court in 2013 and in the Court of Appeal in 2014 on the basis of being discriminatory and in breach of Article 8 of the European Convention on Human Rights, the right to a private and family life.

The challenge reached the Supreme Court. In the case of R ( on the application of MM (Lebanon) and others) v SSHD, the Supreme Court upheld the minimum income requirement of the Immigration Rules as lawful.

The Court also upheld the Secretary of State’s decision not to include third party support as a permissible source of income, but added a caveat in paragraph 99 of the judgment stating that ‘ there is nothing to prevent the tribunal, in the context of the Human Rights Act appeal , from judging for itself the reliability of any alternative sources of finance in the light of the evidence before it… That being the position before the tribunal, it would make little sense for decision-makers at the earlier stages to be forced to take a narrower approach which they might be unable to defend on appeal ‘.

Subsequent to the above judgment, changes to the immigration rules were made with effect from 10 August 2017, to enable reliance on alternative specified sources of income and funds in partner’s applications for entry to the UK.

In this context the media reported last year the case of Mr Newton, a British man whose Ecuadorian wife was denied entry to the UK despite the couple having three young children. They had lived in the UK for one year with their first child before they moved to Abu Dhabi for over four years for reasons of employment. When Mr Newton’s employment was to be terminated, Mr Newton decided to move back to the UK with his wife and three children. The couple applied to the UK Visa and Immigration department of the Home Office to obtain a Spouse Settlement Visa for Mr Newton’s wife. However, this was refused.

The case came to light following the publishing of figures that suggested that the number of children, spouses and dependent relatives of Britons granted UK visas had decreased by 73 per cent in the past ten years.

Immigration lawyers are familiar with the reasons cited for the refusal by the Home Office in the case of Mr Newton such that family life could be maintained via “visits” suggesting that the separation would have no impact on their family life or the upbringing of their children.

According to The Independent newspaper, the couple appealed the decision but were informed in October that they had been refused once more as the couple did not meet the UK immigration system’s financial requirements.

Presently the specified sources of income and funds permitted by the immigration rules include among others: the Sponsor’s exiting income from employment or self-employment in the UK and the Applicant’s income. In specific circumstances, the Sponsor’s income outside the UK in specific circumstances, the applicant and /or sponsor’s savings, pension income, and sometimes other incomes.

Where the minimum income requirement from the above referred specified sources is met, the Applicant might be granted leave on a five year route.

Where the minimum income requirement is not met, new provisions may permit reliance on other sources of income or funds in certain situations.

There is also a provision for exceptional circumstances and alternative sources of income such as third-party support, prospective earnings or any other credible and reliable source of income or funds for the applicant or the sponsor at the date of application or which will become available to them during the period of limited leave applied for.

Navigating through the minefield of rules in this complex area is difficult. Hence it is now more crucial than ever to seek the right legal advice when considering applying to enter the UK under the partner category to avoid refusal of the application.

Careful and expert consideration of the potential sources of income available to the couple will make a difference in obtaining the desired results and minimising the stress of a process which can prevent a couple from sharing their future in the same country.

Our team of experts at LUPINS will be able to provide you with professional and timely assistance in your application or if your application has already been refused, we can provide you with advice and representation at your appeal or in making a fresh application.

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